Case Summaries: N.C. Court of Appeals (Oct. 5, 2021)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on October 5, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

The state was not required to present evidence at probation violation hearing that the defendant absconded since the defendant admitted to the willful violation; judgment remanded for correction of clerical errors.

State v. Brown, __ N.C. App. __, 2021NCCOA531 (Oct. 5, 2021)

The defendant in this case was on supervised probation for a conviction of possession with intent to sell or deliver methamphetamine. The defendant’s probation officer filed a violation report, alleging that the defendant had absconded from supervision and committed several other violations. The defendant waived counsel and testified at the hearing held on the violation; he admitted to absconding and committing the other violations, but also maintained that he had given his current address to his probation officer. The trial court found that the defendant had absconded and committed the other alleged violations, revoked his probation, and activated his sentence. The defendant filed a handwritten notice of appeal.

The appellate court first held that the notice of appeal was defective, but granted discretionary review and addressed the merits. The court rejected the defendant’s argument that the state presented insufficient evidence of absconding, because the defendant admitted to it in his testimony and thereby waived the requirement that the state present sufficient evidence of the violation. Citing State v. Sellers, 185 N.C. App. 726 (2007), the court held that “when a defendant admits to willfully violating a condition of his or her probation in court, the State does not need to present evidence to support the violations.” Defendant’s arguments that he did not understand the legal definition of absconding, had provided his probation officer with an address, and that the trial court should have conducted a more thorough examination of his admission, were unavailing given that the defendant “unequivocally and repeatedly admitted that he had absconded.” The court affirmed the revocation based on absconding, but remanded the judgment to correct three clerical errors regarding the name of the underlying offense of conviction, the total number of alleged violations, and an incorrect indication on the judgment form that the other violations besides absconding would also support revocation. The latter was deemed a clerical error because the transcript clearly indicated that the trial court’s revocation order was properly based only on the absconding violation, in accordance with G.S. 15A-1344(d2).

Case remanded for new sentencing hearing where it was unclear from the record which felony convictions were counted for prior record points; the defendant’s stipulation to the worksheet could not establish substantial similarity of out-of-state convictions.

State v. Bunting, __ N.C. App. __, 2021NCCOA532 (Oct. 5, 2021)

The defendant was convicted at a jury trial of three felony drug charges for the possession, sale, and delivery of heroin, and pleaded guilty to attaining habitual felon status. The defendant stipulated to a sentencing worksheet that indicated a total of 12 record points, giving the defendant a prior record level IV for sentencing.The trial court found mitigating factors and sentenced the defendant to a term of 80 to 108 months.

The defendant argued on appeal that there was insufficient evidence in the record to support the determination that he had a level IV prior record with 12 points, and the appellate court agreed. The sentencing worksheet included several felony convictions that were used to establish defendant’s habitual felon status, along with a number of prior convictions from out-of-state, although most of those convictions were marked out. Next to the felony convictions was a notation indicating 18 points, but the total for this section of the worksheet was listed as 14, which was then crossed out and replaced by a 10 (plus 2 points for the defendant’s misdemeanor convictions). The appellate court agreed with the defendant that it was unclear from the record which felony convictions the trial court relied on in reaching this total. Moreover, in order to reach a total of 12 points, the trial court must have either found that one or more of the out-of-state convictions was substantially similar to a North Carolina offense, or included one or more of the felonies that were used to establish the habitual felon status, neither of which was permitted. The court disagreed with the state’s argument that the defendant’s stipulation was sufficient to support the record level determination, distinguishing this case from State v. Arrington, 371 N.C. 518 (2018), where the stipulations were limited to questions of fact. A defendant may stipulate to the existence of a prior conviction and whether or not it is a felony, but he may not stipulate that an out-of-state conviction is substantially similar to a North Carolina offense; that is a legal determination which must be made by the trial court based on a preponderance of the evidence standard, and there was no such showing or finding made in this case.

The case was remanded for a new sentencing hearing. The court noted that the prior worksheet may serve as evidence at that hearing of the defendant’s stipulation to the existence of the prior convictions, but the state must meet its burden of establishing the substantial similarity of any out-of-state convictions. Since the case was remanded for a new sentencing hearing, the court did not reach the defendant’s remaining arguments as to whether he received ineffective assistance of counsel at sentencing, or whether the trial court committed prejudicial error by miscalculating his record.

Trial court did not err in denying defendant’s motion to suppress evidence obtained pursuant to a search warrant where executing officers turned off their body cameras before the search was completed; there was no evidence of bad faith or loss of materially exculpatory evidence.

State v. Robinson, __ N.C. App. __, 2021NCCOA533 (Oct. 5, 2021)

The defendant was indicted for trafficking opium and possession of a firearm by a felon, and he filed a motion to suppress evidence obtained during a search of his residence on the grounds that the officers executing the search turned off their body cameras after conducting the initial walk-through of the residence. The trial court denied the motion to suppress, finding that there was no evidence of bad faith and no showing that any materially exculpatory evidence was lost – only potentially useful evidence was lost. The defendant pleaded guilty, and the trial court declined the defendant’s request to make a substantial assistance deviation at sentencing, but did make note of his assistance and imposed one consolidated sentence of 90 to 120 months. The defendant filed a notice of appeal and a petition for writ of certiorari.

The appellate court first found that the defendant failed to preserve his right to appeal because he did not give notice of his intent to appeal when the plea was entered. However, the court granted the petition for writ of certiorari and reached the merits on the grounds that the defendant’s trial counsel was responsible for this deficiency, rather than the defendant. Defendant’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he could not find any meritorious issues to argue and asking the court to conduct its own review. The appellate court reviewed the record and the majority likewise concluded that there were no meritorious issues regarding the sufficiency of the indictments, denial of the motion to suppress, factual basis for the guilty plea, or sentencing. On the motion to suppress, the majority agreed with the trial court that there was no evidence of bad faith on the part of the officers in turning off their body cameras, since they were instructed to do so by a supervisor on scene after the walk-through was completed, and they were acting in accordance with their department’s policy. Additionally, the defendant was present during the execution of the search warrant, and there was no showing that any materially exculpatory evidence was lost. The majority therefore found no error.

Judge Murphy dissented, and would have remanded the case for appointment of new appellate counsel to brief issues of potential merit, including whether the officers’ execution of the search warrant may have violated the notice and entry requirements in G.S. 15A-249, and whether the trial court may have erred in its application of the substantial assistance provisions in G.S. 90-95(h)(5).

Defendant failed to properly make or preserve statutory confrontation objection at probation violation hearing; state presented sufficient evidence of absconding.

State v. Thorne, __ N.C. App. __, 2021NCCOA534 (Oct. 5, 2021)

The defendant was placed on 36 months of supervised probation after pleading guilty to one count of conspiracy to obtain property by false pretenses. The defendant’s probation officer subsequently filed a violation report alleging that the defendant had violated his probation by using illegal drugs, and an addendum alleging that the defendant had absconded from probation. At the violation hearing, the defendant admitted to using illegal drugs, but denied that he absconded. The state presented testimony at the violation hearing from a probation officer who was not involved in supervising the defendant, but read from another officer’s notes regarding the defendant’s alleged violations. The trial court found the defendant in violation, revoked his probation for absconding, and activated his suspended 10 to 21 month sentence. The defendant filed a pro se notice of appeal, which was defective, but the court granted his petition for writ of certiorari and addressed the merits.

On appeal, the defendant argued that his confrontation rights under G.S. 15A-1345(e) were violated when the trial court allowed another probation officer to testify from the supervising officer’s notes, over the defendant’s objection. However, at the hearing the defendant did not state that the objection was based on his statutory confrontation right, nor did he request that the supervising officer be present in court or subjected to cross-examination. The court held that, at most, it could be inferred that the defendant’s objection was based on hearsay grounds or lack of personal knowledge. The court rejected the defendant’s argument that the issue was preserved despite the absence of an objection because the trial court acted contrary to a statutory mandate, per State v. Lawrence, 352 N.C. 1 (2000). In this case, the trial court did not act contrary to the statute because the objection made at the hearing was insufficient to trigger the trial court’s obligation to either permit cross-examination of the supervising officer or find good cause for disallowing confrontation. Therefore, the officer’s testimony based on the notes in the file was permissible, and it established that the defendant left the probation office without authorization on the day he was to be tested for drugs, failed to report to his probation officer, did not respond to messages, was not found at his residence on more than one occasion, and could not be located for 22 days. Contrasting these facts with State v. Williams, 243 N.C. App. 198 (2015), in which the evidence only established that the probationer had committed the lesser violation of failing to allow his probation officer to visit him at reasonable times, the evidence here adequately showed that the defendant had absconded. The court therefore affirmed the revocation, but remanded the case for correction of a clerical error because the order erroneously indicated that both violations justified revocation, rather than only the absconding per G.S. 15A-1344(d2).